Politics
Sex, Laws and Legal Tape
Background
The women’s conference in Beijing in 1995 emphasised that what was needed in law making bodies was enough women to have an impact (not just two or three or six), to show that women could really make an effective contribution to public affairs. It popularised the idea that one-third women (33%) should be enough.
Kenyan women picked up the Beijing ball, and ran with it. In 1997 there was an effort to get the law changed to require parties to have at least one-third women candidates. No law was passed, but the failure spurred the establishment of the Women’s Political Caucus who “rejected the role of merely saying prayers, making tea and dancing for politicians during meetings”, as two authors put it.
In the past, there have not been many women in Kenya’s Parliament. Before 2010, there were 222 MPs: 210 for constituencies and 12 “nominated”. The latter were chosen by parties after the election results were in, and were supposed to be the voice of groups with inadequate representation, including women. For example, in 2007 sixteen women were elected for constituencies, and six nominated – just 10%. One woman elected in a by-election in 2008 brought the total up to 11%.
Now we have 349 MPs and 67 senators. Not more than two-thirds men would mean 117 women in the National Assembly and 23 in the Senate.
At the end of the 1990s, FIDA Kenya (International Federation of Women Lawyers) argued that under a new Constitution 30% of the seats in Parliament should be reserved for women. In fact, they said, law should reserve one-third of the seats in all public bodies for women. (Of course, 30% is not one third. In our current National Assembly of 349 members, the difference between the two is eleven).
Making a constitution
In 2001 the first official body to work on a new constitution started work: the Constitution of Kenya Review Commission (usually called the CKRC). The Act of Parliament setting it up said its task included gender equity. Seven CKRC members were women— 26% of the regular members, not the 50% that FIDA had demanded, or even one third. But they included formidable women such as Phoebe Asiyo who had entered Parliament in 1979 (one of only three women), Nancy Baraza, former chair of FIDA, Professor Wanjiku Kabira, founding secretary of the Women’s Political Caucus, and Salome Muigai, gender and disability activist.
“One-third women” became “not more than two-thirds of either gender” at the Bomas conference. Of course it is logical, but the language reflects the male fight-back against women’s demands.
Between 2002 and 2010, there were about eight versions of a new Constitution. All talked about the need to have one third women or “not more than two thirds of either gender”. The CKRC proposed an electoral system that would have guaranteed that at least 45 members out of a house of 300 (15%) were women. National Constitutional Conference at Bomas in 2003-4 replaced this with something quite like the current system: this could have produced 25% women in the National Assembly (the percentage was not clear because, while it named each district/county and gave each a woman member, it left it to Parliament to fix the number of ordinary constituencies).
The idea of “topping-up” with extra women to ensure one third women in county assemblies was in draft constitutions ever since Bomas. But the second draft by the Committee of Experts (CoE) included the same system for the National Assembly and the Senate as well as the county assemblies. The Parliamentary Select Committee that reviewed the draft in early 2010 removed this except for county assemblies. This is important because this is the system that Parliament was most recently discussing.
Incidentally, “one third women” became “not more than two thirds of either gender” at Bomas (let’s call this principle “not>⅔” for short). Of course it is logical, but the language reflects the male fight-back against women’s demands. However, women have sometimes found it useful in argument: not more than two-thirds, they say, means precisely that. There should be no “rounding” of numbers.
The 2010 Constitution
The Constitution seems to make making a clear commitment to not>⅔, particularly in elected bodies, with some provisions about “appointive bodies” (like the cabinet, commissions, the public service, judiciary and various boards and authorities). But it is not always really clear what has to be done, and how and when.
Only in county assemblies is not>⅔ totally guaranteed. After the ward election results are announced, and four seats assigned to parties to represent marginalised groups, including persons with disabilities and the youth, the question is: will more than two-thirds of the seats be occupied by men? If “Yes”, the Constitution provides that enough women must be selected to ensure not>⅔ are men. These extra women are taken from lists of candidates put forward by each party before the election. And the number of these extra members that each party gets depends on how many ward seats the parties have won.
On the Senate, the Constitution has rules making it much easier to achieve not>⅔, but not guaranteeing it. Senate must have 16 extra women and two women to represent persons with disability and marginalised groups. So there is a guarantee that just under 27% of the Senate will be women. If only five women are elected as county Senators, not>⅔ would be achieved. But in 2013 no woman was elected county Senator!
The Constitution takes us less far towards not>⅔ in the National Assembly. It does guarantee 47 seats for women—county women representatives. Though there are 12 seats for marginalised groups (often called “nominated”), there is no guarantee of how many will be women, though probably not less than four. Progress towards not>⅔ could be slow. To get there under the existing rules, 65 women would have to be elected for regular constituencies. In 2013 only 16 of those constituencies (just under 6%) elected women: a smaller percentage than in the 2007 elections. Providing specific seats for county women representatives tended to discourage parties from putting forward women for regular seats: they argued that “women have their special seats”.
“Promote” is not the same as “guarantee” or “ensure”. Incentives, education and persuasion may be forms of promotion, but they do not guarantee representation.
The Constitution also clearly says “Not more than two-thirds of the members of any county executive committee shall be of the same gender” (Article 197). The Governor has a free hand in appointing executive members, so it should be easy to ensure that there are enough women. The same should be true of the President appointing the Cabinet.
Another possible approach is not to require certain behaviour, but provide an incentive – like money. Two early draft constitutions said that Parliament must pass law about how much political parties would get from the Political Parties Fund, and that one factor should be how many women candidates each party had got elected. But the Parliamentary Select Committee removed this, wanting Parliament to have a free hand in deciding how the Fund was used.
Article 81 does not say how the result is to be achieved: the electoral system must comply with several principles— including not>⅔ in elective public bodies. But what is a principle? Does it mean “This must happen and must happen now”, or “Later will do” or just “Make an effort”?
Article 27(8) is also important, and equally puzzling: the State must do what is necessary “to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender”.
Finally, Article 100 says that law “promoting” representation of women and disadvantaged groups must be passed within five years. “Promote” is not the same as “guarantee” or “ensure”. Incentives, education and persuasion may be forms of promotion. In fact, the most sensible meaning of Article 100 is that it is about something different from special rules, like at least one-third women. It is about ensuring that, over time, parties and people are encouraged and educated to accept women and disadvantaged groups as legislators.
After the Constitution
In 2013, the IEBC (Independent Electoral and Boundaries Commission) and the parties had no choice: there had to be 47 women county members of the National Assembly, and 12 extra members of the same body – taken from lists that had to alternate men and women (often called zebra lists); there had to be 18 extra women members of the Senate and top-up members of the county assemblies. Every county’s assembly has been “topped up” this way. So every county has one third women (no less —but also no more). Senate got just the guaranteed 27% women. The National Assembly had 19% women: 16 elected for constituencies, the 47 county women and 5 of the 12 extra members.
And most commissions and other public bodies have one-third women. The same is not always true of government executives: nationally or in the counties. Early on, a FIDA report found that only 16 of the county executives had as many as one third women.
Despite fine words about the Constitution and women’s rights, the Court of Appeal did almost nothing to move the Supreme Court towards not>⅔.
In short, appointers to bodies have usually done what they had to and no more—and sometimes not even that.
Most interest (in the media and in the courts) has been in not>⅔ in Parliament. So we shall look at that saga in detail. But first, the court cases about appointive bodies.
The Courts on “appointive bodies”
There have been two particularly important cases.
One, in 2011, was brought by FIDA about the composition of the Supreme Court, with two women and seven men (over 70% men). Despite fine words about the Constitution and women’s rights, the Court of Appeal did almost nothing to move the Supreme Court towards not>⅔. The Court of Appeal read 27(8) as though it demanded “progressive realisation” or gradual movement towards not>⅔, and did not create any immediate duty. But “progressive” is not there. To be fair to the Court of Appeal, teasing out the meaning of 27(8) is not easy.
And it said that the Judicial Service Commission—which selects the judges—did nothing wrong. It suggested that the JSC could do nothing until the government passed law or took some other measures to ensure not>⅔. But this ignores that Article 27(8) puts the duty on “the State” not just the government, and the JSC is part of the State. Indeed, because the JSC is an independent commission, there is very little the government or Parliament can do to tell it how to work.
In 2017, the issue came up again—brought by the National Gender and Equality Commission. Justice Chacha Mwita was happy to decide that two thirds of seven is five, leaving little room for requiring efforts to make the Supreme Court truly gender equal. He did not explain what the Constitution means when it says the JSC must promote gender equality.
In the second case, in 2017, the make-up of the cabinet was challenged. Justice Onguto held that Article 27(8) did apply to the cabinet, and had been violated because cabinet had more than two thirds men. However, because of the imminent election he said the cabinet did not have to be changed immediately, but a wrongly made-up cabinet after the election would be invalid. He did not accept the idea that this was a matter for progressive realisation.
Trying to get not>⅔ in Parliament
The IEBC
The IEBC and its predecessor the Interim Independent Election Commission did try to ensure not>⅔ in Parliament. An expert proposed a novel system: every candidate in a regular constituency would have to run on a “ticket” of a woman and a man. Voters would vote for the ticket not the individual. If a “ticket” won, usually the first name on the ticket—man or woman—would become the MP. But, after all results were in, if not enough women had seats, the women rather than the men from winning tickets would have been taken, until enough women were taken. The taking-the-women process would have begun with the tickets that had won, but the least resoundingly (by the smallest proportion of the votes cast). It wasn’t a perfect system—independent candidates particularly presented a problem. But it would have meant no-one had to give up the chance to stand because of their gender, and women would have had a chance to stand in every constituency, learn about campaigning etc. And it would not have needed a change in the Constitution.
But the IIEC preferred another system: grouping constituencies into fours, and designating one of each four as a “women only” constituency for one election. This could have been done without amending the Constitution. But the idea did not get past Cabinet. Men could not bear the idea of not being able to stand for “their” constituencies.
So in 2013 there was no mechanism to ensure not>⅔.
Enter the courts
The question of not>⅔ in Parliament went to court just before the 2013 elections; the case was brought by CREAW (Centre for Rights Education and Awareness). A majority of the Supreme Court decided that “principles” were not firm rules. And affirmative action, like special measures to get women into Parliament, was something to be achieved gradually. So Parliament with under 33% women would not be immediately unconstitutional. A bit like the FIDA case on the Supreme Court.
Because the JSC is an independent commission, there is very little the government or Parliament can do to tell it how to work.
Chief Justice Willy Mutunga disagreed. He would have insisted on the necessary law being passed then.
The Supreme Court majority seized on Article 100: about law “promoting” representation of women and disadvantaged groups. By 2015, the Court said, the law guaranteeing the gender quota must be in place. This is ingenious, if not perhaps what the drafters intended. But what the Supreme Court says is the law.
The Attorney-General
The Attorney General set up a Task Force. It considered various solutions including the two systems just mentioned, and others, most of which would have needed a change to the Constitution—except financial incentives to parties to strive for women to win their seats.
The MPs
Bills were introduced into Parliament to amend the Constitution to ensure not>⅔. The MPs just did not turn up in sufficient numbers to pass the Bills.
Parliament did amend the Political Parties Act to include a provision that says that 15% of the Political Parties Fund must be distributed to parties based on how many “special interest group” members were elected for the parties at the preceding general election. Women are among the “special interest groups”. This may not help much. Last time, only three parties got anything from the Fund. Even with recently changed rules for allocating the Fund, no more than four parties will get money from it after the 2017 elections if the pattern of seats won is like last time. Finally, though the Fund is not small, is it enough to persuade parties to change deep-seated prejudices?
The courts again
In 2015, Justice Mumbi Ngugi held, in another case brought by CREAW, that Parliament must pass the necessary law by the Supreme Court’s deadline. So Parliament extended the deadline. Soon after the National Assembly missed this new extended deadline, CREAW went back to court. Justice Mativo decided this case on March 29th 2017. He ruled that Parliament had failed to do what the Supreme Court had directed. He told them they had to do it by May 29th, otherwise anyone could apply to the Chief Justice asking for an order that Parliament should be dissolved (which means an election). This is because the Constitution says that if Parliament does not comply with a court order to make a law implementing the Constitution, anyone may apply to the Chief Justice. And the Chief Justice must ask the President to dissolve Parliament, and the President must do so.
Bills were introduced into Parliament to amend the Constitution to ensure not>⅔. The MPs just did not turn up in sufficient numbers to pass the Bills.
But changing the voting system is not the only way to get more women. One other court case suggested that one way is for parties to put forward enough women candidates, and for the IEBC should pressurise parties to do so. The court agreed. But the judge said that because time was short, he would not order this for 2017. But for next time the IEBC must take this approach. In fact, the IEBC has said that it has tried to do it this time, but it cannot force the parties.
This approach does have shortcomings: a party might nominate women as candidates for half its constituencies, but if these were constituencies the party was least likely to win, it might end up with well under one-third women members actually elected. However, last time, 15% of women ward MCA candidates got elected—the same as men. But a large number of (mostly male) independent candidates might also produce more male members.
Conclusion
We waited for Parliament. Could it push through a constitutional amendment in time? Might it try the women-only constituency system rule, or the two-name ticket approach—so avoiding constitutional amendment? But was there time before the election to do the necessary new nominations? Or would it fail to meet the court’s deadline?
Now we know: Parliament discussed amending the Constitution to introduce top-up seats for women. This has been their favourite approach because existing MPs wanted to hang on to their chances. It would have been the least complex system to administer so close to the elections. If it had been passed, and if the results were the same in terms of numbers of seats held by women as in 2013, to achieve not>⅔ the National Assembly would have had to have 73 top-up women—and a total of 422 members.
Anyway, Parliament failed. How hard did it try? On June 6th the National Assembly debated the Bill, but after that the members perhaps realised the effort was pointless—despite being on the House’s agenda repeatedly, nothing was done before they closed finally on June 15th. And it had not gone to Senate!
No-one seems to have gone to the Chief Justice. Probably everyone realised this would not have helped. There is already to be an election —less than two months after Justice Mativo’s deadline. And the IEBC is struggling to be ready by then.
But changing the voting system is not the only way to get more women. One other court case suggested that one way is for parties to put forward enough women candidates, and for the IEBC should pressurise parties to do so.
We have some time to rethink strategies, including whether we want an even more “bloated” National Assembly. And, let’s think about the position of women representatives. In the National Assembly only 16 were elected on the same basis as most men: competing in a constituency. The forty-seven county members have roles less well understood by the public, and with larger constituencies to manage; and five are list members with roles also less well understood. In the Senate: all have unclear roles, not representing counties, unlike most of the men. In the counties, most of the women are list members, without ward responsibilities or support, so again having a role that is not clear to everyone. Is this satisfactory? Do we want even more of these sorts of seats for women? However, many of these women have been active members. One indication may be how well women who have served as “nominated members” in the current Parliament or county assemblies are able to use that experience as a springboard to election for regular constituencies, wards, counties or even governorships.
A report says that this time, 11 women are standing for Governor (there were only six last time), and 42 for Senator (17 last time), but the picture is sketchy so far. However, a final thought: suppose—by a miracle—in August five women are elected Senator and 65 women are elected as constituency MPs, so neither house has more than two-thirds men. Would that not be a better solution? Would it be the end of the story?
The sting in the tail
Now for the bad (or worse) news: some have said that the new Parliament would also risk being dissolved if it fails to pass this law. But, the Constitution (it’s Article 261(8)) says that the period Parliament gets to pass a law begins again when the new Parliament begins its term. For Article100—the peg on which the Supreme Court hung its ruling in the CREAW case— the implementation period allowed is five years. No Parliament will last more than five years. So the CREAW case technique will never work again.
But the constitutional principles still apply. Article 100 is not an essential aspect of the achievement of the “not more than two thirds” rule. In his minority decision in the original CREAW case, Chief Justice Mutunga was clear that “any of the elected houses that violate this principle will be unconstitutional and the election of that house shall be null and void.” Will the courts agree?
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Politics
Is Somalia’s Quest for Membership of the EAC Premature?
Somalia must first ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the East African Community.
The current members of the East African Community (EAC) are Tanzania, Kenya, Uganda, Rwanda, Burundi, and South Sudan. The Somali Federal Government, under the leadership of Hassan Sheikh Mohamud, has expressed a strong interest in joining the EAC, sparking questions among Somali citizens as to whether the country is ready to join such a large and complex regional bloc.
During President Hassan Sheikh Mohamud initiated Somalia’s pursuit of EAC membership during his previous term as a president from 2012 to 2017. However, little progress was made during his first term and, following his re-election, President Hassan reignited his pursuit of EAC membership without consulting essential stakeholders such as the parliament, the opposition, and civil society. This unilateral decision has raised doubts about the president’s dedication to establishing a government based on consensus. Moreover, his decision to pursue EAC membership has evoked mixed responses within Somalia. While some Somalis perceive joining the EAC as advantageous for the country, others express concerns about potential risks to Somalia’s economic and social development. President Hassan has defended his decision, emphasising that Somalia’s best interests lie in becoming a member of the EAC.
To assess Somalia’s readiness to join the EAC, the regional bloc undertook a comprehensive verification mission. A team of experts well versed in politics, economics, and social systems, was tasked with evaluating Somalia’s progress. The evaluation included a thorough review of economic performance, trade policies, and potential contributions to the EAC’s integration efforts. During this process, the team engaged with various government institutions and private organisations, conducting comprehensive assessments and discussions to gauge Somalia’s preparedness.
One of the key requirements for Somalia is demonstrating an unwavering commitment to upholding principles such as good governance, democracy, the rule of law, and respect for human rights. Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Successful integration into the EAC would not only elevate Somalia’s regional stature but would also foster deeper bonds of cooperation and shared prosperity among the East African nations. While this is a positive step towards regional integration and economic development, there are several reasons for pessimism about the potential success of Somalia’s membership in the EAC.
Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Somalia has faced significant challenges due to prolonged conflict and instability. The decades-long civil war, coupled with the persistent threat of terrorism, has had a devastating impact on the country’s infrastructure, economy, governance systems, and overall stability.
The following fundamental factors raise valid concerns about Somalia’s readiness to effectively participate in the EAC.
Infrastructure development
Infrastructure plays a critical role in regional integration and economic growth. However, Somalia’s infrastructure has been severely damaged and neglected due to years of conflict. The country lacks adequate transportation networks, reliable energy systems, and while communications infrastructure has improved, internet penetration rates remain low and mobile networks – which are crucial for seamless integration with the EAC – can be unavailable outside of urban centres. Rebuilding such infrastructure requires substantial investments, technical expertise, and stability, all of which remain significant challenges for Somalia.
Political stability and governance
The EAC places emphasis on good governance, democracy, and the rule of law as prerequisites for membership. Somalia’s journey towards political stability and effective governance has been arduous, with numerous setbacks and ongoing power struggles. The lack of a unified government, coupled with weak state institutions and a history of corruption, raises doubts about Somalia’s ability to meet the EAC’s standards. Without a stable and inclusive political environment, Somalia may struggle to effectively contribute to the decision-making processes within the regional bloc.
Economic development and trade
Somalia’s economy has been heavily dependent on the informal sector and faces substantial economic disparities. The country needs to demonstrate a vibrant market economy that fosters regional trade and collaboration, as required by the EAC. However, the challenges of rebuilding a war-torn economy, tackling high poverty rates, and addressing widespread unemployment hinder Somalia’s ability to fully participate in regional trade and reap the benefits of integration.
Security Concerns
Somalia continues to grapple with security challenges, including the presence of extremist groups and maritime piracy. These issues have not only hindered the country’s development but also pose potential risks to the stability and security of the entire EAC region. It is crucial for Somalia to address these security concerns comprehensively and to establish effective mechanisms to contribute to the EAC’s collective security efforts.
Economic Disparity and Compatibility
Somalia’s economy primarily relies on livestock, agriculture, and fishing, which may not align well with the more quasi-industralised economies of the other EAC member states. This mismatch could result in trade imbalances and pose challenges for integrating Somalia into the regional economy. For instance, according to the World Bank, Somalia’s GDP per capita was US$447 in 2021 whereas it is US$2081 for Kenya, US$1099 for Tanzania, and US$883 for Uganda. Furthermore, Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
This divergence in economic structures could lead to trade imbalances and impede the seamless integration of Somalia into the regional economy. The substantial economic gap between Somalia and other EAC member states suggests a significant disparity that may hinder Somalia’s ability to fully participate in the EAC’s economic activities. Additionally, Somalia has yet to demonstrate fiscal or economic discipline that would make it eligible for EAC membership. While Somalia has a functioning Central Bank and the US dollar remains the primary mode of financial transactions, the risk of integration lies with the other EAC members; cross-border trade would occur in an environment of instability, posing potential risks to the other member state.
Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
While these fundamental challenges remain, it is important to acknowledge the progress Somalia has made in recent years. This includes the gradual improvement in security conditions, the establishment of key governmental institutions, and the peaceful transfer of power. One can also argue that many of these fundamental economic, infrastructure, political instability, and security concerns exist across the East African Community. However, what makes Somalia unique is the scale of the challenges it faces today. Somalia has adopted a federal political structure, which has not worked well so far. This level of fragmentation and civil political distrust makes Somalia’s case unique. More than ever, Somalia needs meaningful political and social reconciliation before it can embark on a new regional journey.
The absence of an impact assessment by the relevant ministries in Somalia is alarming. Without this assessment, it becomes challenging to make informed decisions about the potential benefits of joining the EAC and the impact on our economy and society. Conducting this assessment should be a priority for Somalia’s ministries to ensure a comprehensive evaluation of the potential benefits and risks involved in EAC membership. Furthermore, President Hassan Sheikh Mohamud’s decision to pursue Somalia’s integration into the EAC lacks political legitimacy as a decision of this nature would normally require ratification through a popular vote and other legal means through parliament. The failure to achieve this could potentially allow another president in the future to unilaterally announce withdrawal from the EAC.
Fragile state of Affairs and internal disputes
The recent reopening of the Gatunda border post between Uganda and Rwanda after a three-year period of strained relations indicates a fragile state of affairs. The East African Court of Justice has ruled that Rwanda’s initial closure of the border was illegal, highlighting the contentious nature of inter-country disputes. Furthermore, Tanzania and Uganda have formally lodged complaints against Kenya, alleging unfair advantages in trade relations, and have even gone as far as threatening Kenya with export bans. These grievances underscore the underlying tensions and competition between member states, which could potentially hinder the harmonious functioning of the East African Community. These political and economic disagreements among member states increase the risks associated with Somalia’s membership. Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions. Joining the East African Community at this juncture carries the risk of being drawn into ongoing disputes and potentially being caught in the crossfire of inter-country rivalries.
Conflict in South Sudan
The prolonged conflict in South Sudan, which has been ongoing since its admission to the East African Community (EAC) in 2016, serves as a cautionary tale for Somalia. Despite the EAC’s efforts to mediate and foster peace in the region, the outcomes have been mixed, resulting in an unsustainable peace. This lack of success highlights the challenges faced by member states in resolving conflicts and maintaining stability within the community. Somalia must carefully evaluate whether its participation in the EAC will genuinely contribute to its stability, economic growth, and development, or if it risks exacerbating existing internal conflicts. Joining the community without a solid foundation of political stability, institutions, and peace could potentially divert resources and attention away from domestic issues, hindering Somalia’s progress towards resolving its own challenges. South Sudan’s admission to the EAC in 2016 was seen as a major step towards regional integration and stability. However, the country has been mired in conflict ever since, with two civil wars breaking out in 2013 and 2016. The EAC has been involved in mediation efforts, with mixed results.
Assessing Readiness
Somalia must evaluate the readiness of its institutions, infrastructure, and economy to effectively engage with the East African Community. Comprehensive preparations are crucial to ensure that joining the community is a well thought-out and strategic decision, rather than a hasty move that could further destabilise the nation. Somalia needs to assess whether its infrastructure, institutions, and economy are sufficiently developed to cope with the challenges and demands of integration. Premature membership could strain Somalia’s resources, impede its growth, and leave it at a disadvantage compared to more established member states.
Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions.
Somalia must ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the EAC. A phased approach that prioritises capacity building, institution-strengthening, and inclusive governance would enable Somalia to lay a solid foundation for successful integration and reap the maximum benefits from EAC membership in the long term. Failure to address these concerns would make Somalia vulnerable to exploitation and market monopolies by stronger economies, and could also risk a lack of seamless convergence for Somalia’s membership. While there is political will from EAC leaders to support Somalia’s membership, it is vitally important that they make the right decision for Somalia and the EAC bloc as a whole to ensure a successful integration. I believe that, at this juncture, the disadvantages of Somalia joining the EAC outweigh the benefits.
Politics
2023 Marks 110 Years Since the Maasai Case 1913: Does it Still Matter?
It was a landmark case for its time, a first for East Africa and possibly for the continent. A group of Africans challenged a colonial power in a colonial court to appeal a major land grab and demand reparations. They lost on a technicality but the ripple effects of the Maasai Case continue to be felt.
In the name Parsaloi Ole Gilisho there lies an irony. It was spelled Legalishu by the colonial British. Say it out loud. He gave them a legal issue, all right. And a 110-year-old headache.
This extraordinary age-set spokesman (a traditional leader called ol-aiguenani, pl. il-aiguenak) led non-violent resistance to the British, in what was then British East Africa, that culminated in the Maasai Case 1913. Ole Gilisho was then a senior warrior, who was probably in his mid- to late thirties. In bringing the case before the High Court of British East Africa, he was not only challenging the British but also the Maasai elders who had signed away thousands of acres of community land via a 1904 Maasai Agreement or Treaty with the British. This and the 1911 Agreement – which effectively rendered the first void – are often wrongly called the Anglo-Maasai Agreements. In Ole Gilisho’s view, and those of his fellow plaintiffs, these elders had sold out. The suit accused them of having had no authority to make this decision on behalf of the community. This represented a very serious challenge by warriors to traditional authority, including that of the late laibon (prophet) Olonana, who had signed in 1904, and died in 1911.
The British had expected the Maasai to violently rebel in response to these issues and to colonial rule in general. But contrary to modern-day myths that the Maasai fought their colonisers, here they resisted peacefully via legal means. They hired British lawyers and took the British to their own cleaners. Spoiler: they lost, went to appeal, and lost again. But archival research reveals that the British government was so convinced it would eventually lose, if the Maasai appealed to the Privy Council in London (they didn’t), that officials began discussing how much compensation to pay.
The facts are these. The lawsuit was launched in 1912. There were four plaintiffs, Ole Gilisho and three fellow Purko (one of the 16 Maasai territorial sections) Maasai. In Civil Case No. 91 they claimed that the 1911 Maasai Agreement was not binding on them and other Laikipia Maasai, that the 1904 Agreement remained in force, and they contested the legality of the second move. They demanded the return of Laikipia, and £5,000 in damages for loss of livestock during the second move (explained below). Ole Gilisho was illiterate and had never been to school. But he and his fellow plaintiffs were assisted by sympathetic Europeans who were angered by the injustice they saw being perpetrated against a “tribe” that British administrators conceded had never given them any trouble. These sympathisers included people who worked for the colonial government, notably medical Dr Norman Leys and some district officials, lawyers, a few missionaries, the odd settler, and a wider group of left-wing MPs and anti-colonial agitators in Britain.
What had led up to this? After the 1904 Agreement, certain groups or sections of Maasai had been forcibly moved from their grazing grounds in the central Rift Valley around Naivasha into two reserves – one in Laikipia, the other in the south on the border with German East Africa. The British had pledged that this arrangement was permanent, that it would last “so long as the Maasai as a race shall exist”. But just seven years later, the British went back on their word and moved the “northern” Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve. In all, it is estimated that the Maasai lost at least 50 per cent of their land, but that figure could be nearer 70 per cent. The ostensible reason for moving them was to “free up” land for white settlement – largely for British settlers but also for South Africans fleeing the Boer War (also called the South African War).
But just seven years later, the British went back on their word and moved the ‘northern’ Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve.
By the time the case came to court, Ole Gilisho had become a defendant, even though he was in favour of the plaint. So were at least eight other defendants. He had signed the 1904 Agreement, and now stood accused with 17 other Maasai of having no authority to enter into such a contract. The first defendant was the Attorney General. Ole Gilisho’s son-in-law Murket Ole Nchoko, misspelled Ol le Njogo by the British, and described as a leading moran (il-murran or warrior) of the Purko section, was now the lead plaintiff. The plaint was called Ol le Njogo and others v. The Attorney General and others.
Challenges facing the plaintiffs
Most Maasai were illiterate in those days, and this obviously placed them at a major disadvantage. They could not write down their version of events. They were forced to rely, in their dealings with officials and their own lawyers, upon translators and semiliterate mediators whose reliability was questionable. But it is evident, from the archival record which includes verbatim accounts of meetings between Maasai leaders and British officials in the run-up to the moves and case, that the level of verbal discourse was highly sophisticated. This comes as no surprise; verbal debate is a cornerstone of Maasai society and customary justice. Unfortunately, that alone could not help them here. They knew they needed lawyers, and asked their friends for help. Leys, who was later sacked from the colonial service for his activism, admitted in a private letter: “I procured the best one in the country for them.” This was more than he ever admitted openly.
Local administrators used intimidation and all kinds of devious means to try and stop the case. (I didn’t come across any evidence that the Colonial Office in London sanctioned this; in fact, it ordered the Governor not to obstruct the main lawyer or his clients.) They allegedly threatened Ole Gilisho with flogging and deportation. They threatened and cross-questioned suspected European sympathisers, including Leys and the lawyers. They banned Maasai from selling cattle to raise the legal fees, and placed the Southern Reserve in continuous quarantine. It was hard for the plaintiffs, confined to a reserve, to meet their lawyers at all. At one point, lawyers were refused passes to enter the reserve, and their clients were prevented from leaving it.
We hear Ole Gilisho’s voice in the archival record. Forced to give a statement explaining his actions to officials at Enderit River on 21 June 1912, when asked if he had called Europeans to his boma, he replied: “Is it possible for a black man to call a white man?” He denied having called the Europeans (probably lawyers or go-betweens), saying they had come to him. Leys later explained to a friend that Ole Gilisho had probably been “terrified out of his wits”, and hadn’t meant what he said.
What happened in court
The case was thrown out when it first came before the High Court in Mombasa in May 1913. The Maasai appealed, and that is when the legal arguments were fully aired by both sides – lawyers for the Crown and the Maasai. The appeal was dismissed in December on the grounds that the plaintiffs’ claims were not cognisable in municipal courts. The two agreements were ruled not to be agreements but treaties, which were Acts of State. They could not, therefore, be challenged in a local court. It was impossible for the plaintiffs to seek to enforce the provisions of a treaty, said the judges – “The paramount chief himself could not bring such an action, still less can his people”. Claims for damages were also dismissed.
The Court of Appeal’s judgement centred on the status of a protectorate, in which the King was said to exercise powers granted to him under the Foreign Jurisdiction Act of 1890. Irrational as it sounds, the Crown claimed that British East Africa was not British territory, and the Maasai were not British subjects with any rights of access to British law, but “protected foreigners, who, in return for that protection, owe obedience” to the Crown. As Yash Pal Ghai and Patrick McAuslan later put it, when discussing the case in a 1970 book: “A British protected person is protected against everyone except the British.” On the plus side, the judges ruled that the Maasai still retained some “vestige” of sovereignty. (The Maasai’s lawyer argued that they did not.) This triggered later moves by Maasai politicians, in the 1960s, to float the idea of secession from Kenya and the possible creation of a sovereign Maasai state. John Keen had threatened this in 1962 at the second Lancaster House Conference in London, attended by a Maasai delegation.
Alexander Morrison, lawyer for the Maasai, argued that British rule and courts were established in the protectorate, which had not been the case 30 years earlier. The Maasai were not foreigners but equal to other British subjects in every way. The agreements were civil contracts, enforceable in the courts, and not unenforceable treaties. If one took the Crown’s claim about Acts of State to its logical conclusion, he argued, a squatter refusing to leave land reserved for the Maasai could only be removed by an Act of State. None of his arguments washed with the judges. (See my 2006 book Moving the Maasai for a fuller account.)
Morrison advised his clients to appeal. It seems they couldn’t raise the funds. However, oral testimony from elders reveals a different story: Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea. This is impossible to verify, but it rings true.
In an interview carried out on my behalf in 2008 by Michael Tiampati, my old friend John Keen had this to say about the outcome of the case: “If the hyena was the magistrate and the accused was a goat, you should probably know that the goat would not get any form of justice. So this is exactly how it was that the Maasai could not get any fair justice from British courts.”
Contemporary African resistance
Unbeknown to the Maasai, there was growing anti-colonial resistance in the same period in other parts of Africa. All these acts of resistance have inspired African activists in their continuing struggles. To mention a few: the Chilembwe rebellion in Nyasaland, now Malawi (1915); the Herero revolt in German South West Africa, now Namibia (1904–1908); resistance in present-day Kenya by Mekatilili wa Menza (largely 1913-14); the First Chimurenga or First War of Independence in what is now Zimbabwe (1896–1897); and the Maji Maji rebellion in German East Africa, now Tanzania (1905–1907). But none of these rebellions involved lawsuits. The closest precedent may have been R vs Earl of Crewe, Ex-parte Sekgoma in 1910. Chief Sekgoma, who had been jailed by the British in the Bechuanaland Protectorate (now Botswana) after many attempts to remove him as chief, instructed his lawyer to bring a writ of habeus corpus against the Secretary of State for the Colonies, Lord Crewe. He demanded to be tried in an English court, refusing an offer of release on condition that he agrees to live in a restricted area of the Transvaal. The suit was dismissed, the court ruling that the King had unfettered jurisdiction in a protectorate, and his right to detain Sekgoma was upheld. Sekgoma apparently said: “I would rather be killed than go to the Transvaal. I will not go because I have committed no crime – I wish to have my case tried before the courts in England or else be killed.” Freed in 1912, he died two years later.
Enduring myths
The case, and other key events in early twentieth century Maasai history, have given rise to several myths. They include the idea that the stolen land should “revert” to the Maasai after 100 years, but that was not stated in the 1904 Agreement, which was not limited in time, was not a land lease, and has not “expired” as many people claim. Neither agreement has. Keen knew this, but nonetheless called for the land to “revert”. Other myths include the idea that Olonana’s thumbprint was placed on the 1911 Agreement posthumously, and it must therefore be invalid. But neither his thumbprint nor name are on the document, which was “signed” by his son Seggi. Anyhow, Olonana was a key ally of the British, who had no reason to kill him (which is another myth).
The original of the 1904 Agreement has never been found, which has led some Maasai to believe that it never existed and therefore all the land must be restored and compensation paid for its use to date. There may be sound legal arguments for restorative justice, but this is not one of them. These myths are ahistorical and unhelpful, but may be understood as attempts to rationalise and make sense of what happened. Some activists may wish that the Maasai had resisted violently, rather than taken the legal route. Hence the insistence by some that there was a seamless history of armed resistance from the start of colonial rule. Not true. There are much better arguments to be made, by professional lawyers with an understanding of international treaty rights and aboriginal title, which could possibly produce results.
Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea.
Where does all this leave the Maasai today? Over the years, there has been much talk of revisiting the case and bringing a claim against Britain (or Kenya) for the return of land or reparations for its loss. None of this has resulted in concrete action. I attended a planning workshop in Nairobi in 2006 when plans were laid for a lawsuit. VIPs present included the late Ole Ntimama, scholar Ben Kantai and John Keen. Keen declared, with his customary flourish, that he would stump up a million shillings to get the ball rolling. I don’t know how much money was raised in total, but it disappeared into thin air. As did the lawyers.
Leading lawyers have advised that too much time has passed, and (unlike the successful Mau Mau veterans’ suit) there are no living witnesses who could give evidence in court. It is unclear whether the agreements still have any legal validity. The British government might argue, as it previously has, including in response to my questions, that it handed over all responsibility for its pre-1963 actions to the Kenyan government at independence. This is a ludicrous argument, which is also morally wrong. Former colonial powers such as Germany have accepted responsibility for historical injustices in their former colonies, notably Namibia. Has the time come for Ole Gilisho’s descendants to call a white man to court?
Politics
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
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This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site every week.
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